How will filing an I-526 affect J-1 eligibility?

My parents put the application for EB-5 in for me without notifying me ahead. I am studying in Canada now and I just found a internship in California. I need to apply for J-1. Will I get rejected for sure?

If you will be obtaining your green card as a dependent of your parent (principal investor), then technically the EB-5 process has not begun for you. Only the principal investor submits the I-526 petition. As a dependent, you will not be included until the consular processing phase.

As an applicant for J-1, you must maintain nonimmigrant intent. EB-5 is an immigrant category and therefore, it is not consistent with a J-1. It is not possible for your parents to file an I-526 for you because you must sign the petition form (and other company formations documents or agreements) before petition filing. If this was done without your knowledge/consent, you can always withdraw the I-526 petition.

The facts are not clear how an I-526 petition may have been filed on your behalf without you signing the immigration forms. If the petition is filed by one of your parents as an EB-5 investor and you are a dependent, then you should not have an issue with your J-1 visa application because you have not declared immigrant intent by filing an I-526 petition in your name. Please keep in mind certain J-1 programs may have a two year home residency requirement, which will not allow you to adjust your status in the United States or consular process for an immigrant visa until you have fulfilled that requirement or applied to waive such requirement under certain conditions.

Filing an EB-5 investor petition on Form I-526 could affect your J-1 exchange visitor's eligibility. A J-1 exchange visitor, like an F-1 student, is subject to Section 214(b) of the Immigration & Nationality Act and has a burden of proof to show that he or she does not intend to immigrate to the United States. By filing the I-526 petition, which not only has to be disclosed, but is a matter of record, a consulate officer, or in the case of a Canadian, a U.S. Customs and Border Protection Inspector, could determine that a nonimmigrant applicant for admission in J-1 status is not eligible for such status if, based upon the filed I-526 petition, he or she intends to immigrate to the United States and not to depart the United States upon completion of the J-1 exchange visitor's program.

Having a pending I-526 immigrant petition for alien investor is a declaration of immigrant intent as far as the USCIS is concerned. When applying for a J-1 nonimmigrant visa, you will need to disclose this info. This may affect your ability to obtain a J-1 unless you can clearly explain/demonstrate the temporariness of your J-1 status with long-term goals of immigrating after the EB-5 is approved, etc.

You may have an issue and your J-1 may be denied. Most visas, except the H and L visa, do not allow immigrant intent. Since the filing of an I-526 shows immigrant intent, the consulate may deny your J visa.

A pending immigrant petition may be a reason for a J-1 denial, but not necessarily. If the consulate can be convinced that you will return to your home country after your J-1 status ends, then they can still approve the visa. You want to focus on giving the consulate evidence to show you intend to do consular processing instead of an adjustment of status. Also, make sure your J-1 does not have a home country presence requirement. Many J-1 programs require you to spend time (up to two years) in your home country prior to becoming a U.S. resident.

It is not clear how your parents put in the EB-5 petition, I-526, for you without notifying you as you had to sign the petition as the investor. If the I-526 is in one of your parents' name, then you do not have to worry because you have not shown immigrant intent as you have not filed anything in your name. If you are the investor and the petition is in your name, then you should make sure that you will consular process for the immigrant visa after the I-526 is approved. Also, some J-1 visa internships have a two year residency requirement that will make you go back home after the internship for two years before you can come back. Please consult with your immigration lawyer to make sure that you and your parents are not working at cross purposes unintentionally. What they are trying to do and what you want to do could be done, but requires a careful coordination by an experienced professional.

Having an immigrant visa petition on file is a highly negative circumstance. You must always plan overall strategy. However, some consuls might consider; it is certainly a tough case.

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